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    Act 317: More Changes to Landlord-Tenant Law

    Lawyers for commercial and residential landlords and tenants must be ready to follow the new and revised statutory provisions, most of which took effect April 18, 2018.

    Tristan R. Pettit & Jennifer M. Hayden

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    The Wisconsin Legislature has made several changes to landlord-tenant law in the last several years. The most recent change was 2017 Wis. Act 317, which became effective on April 18, 2018. Lawyers for landlords and tenants alike need to understand these new laws, and modifications to prior laws, to properly represent and advocate for their clients.

    Informally referred to as the Landlord Omnibus Laws, the following laws have been passed since 2012: 2011 Wis. Act 143 (effective March 31, 2012), 2013 Wis. Act 76 (effective Dec. 14, 2013), and 2015 Wis. Act 176 (effective March 2, 2016). The latest omnibus law is Act 317 (effective April 18, 2018),1 which made substantial modifications and additions to Wisconsin landlord-tenant law. Act 317 also covers non-landlord-tenant-related topics that will not be addressed in this article, including the repair or replacement of properties in historic districts, inspections of rental properties, rental property registration, and utilities.

    Assistance Animals

    Act 317 removed Wis. Stat. section 106.50(2r)(bm), titled “Animals assisting person with disabilities,” which focused on animals assisting people with visual, hearing, or mobility impairments and only applied to animals that were specifically trained.2 The prior law’s limitations confused many lawyers because it failed to address tenants who may have had other nonlisted disabilities or animals with no specific training.

    Act 317 replaced the above statutory section with two separate provisions, one addressing “Animals that do work or perform tasks for persons with disabilities” (Wis. Stat. § 106.50(2r)(bg)) and one focused on emotional support animals (Wis. Stat. § 106.50(2r)(br)).3 These sections essentially set forth the basics of reasonable accommodation law related to assistance animals in Wisconsin and provide lawyers with one place to turn for reference.

    Wisconsin lawyers should be aware that under federal fair housing law, a tenant who wishes to keep an ESA is not required to have a licensed health care professional verify that the tenant has a disability and a disability-related need for the ESA.

    Animals That Do Work or Perform Tasks for Individuals with Disabilities. If a rental applicant or tenant has a disability and a disability-related need for an animal, it is discrimination for a landlord to do any of the following because the person keeps such an animal:

    • Refuse to rent to the person;

    • Cause the eviction of the person;

    • Require extra compensation from the person as a condition of continued residence; or

    • Harass the person.

    If a tenant keeps such an animal in rental housing, unless the tenant’s disability and disability-related need for the animal is apparent or known, the landlord can request that the tenant provide reliable documentation that the tenant has a disability and reliable documentation of the disability-related need for the animal.4

    A tenant who keeps an animal that does work or performs tasks for a person with disabilities can be held liable for damage to the rental property caused by the animal.

    A landlord may deny a tenant the ability to keep such an animal, if any of the following apply:

    • The tenant is not disabled, does not have a disability-related need for the animal, or fails to provide the necessary documentation.

    • Allowing the animal would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the landlord.

    • The specific animal poses a direct threat to a person’s health or safety that cannot be reduced or eliminated by another reasonable accommodation.

    • The specific animal would cause substantial physical damage to a person’s property that cannot be reduced or eliminated by another reasonable accommodation.5

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    Tristan Pettit discusses changes to Wisconsin landlord-tenant law contained in 2017 Wis. Act 317.

    Emotional Support Animals

    An “emotional support animal” (ESA) is defined in Act 317 as “an animal that provides emotional support, well-being, comfort, or companionship to an individual but is not trained to perform tasks for the benefit of a disabled person.” An ESA is different than an animal that does work or performs tasks for persons with disabilities.

    If a rental applicant or tenant has a disability and a disability-related need for an ESA, it is discrimination for a landlord to do any of the following because the person keeps an ESA:

    • Refuse to rent to the person;

    • Cause the eviction of the person;

    • Require extra compensation from the person as a condition of continued residence; or

    • Harass the person.

    If a tenant keeps an ESA, the landlord may request, unless the tenant’s disability and the disability-related need is apparent or known, that the tenant provide reliable documentation that the tenant has a disability and reliable documentation of the disability-related need for the ESA from a “licensed health care professional.”6

    A “licensed heath care professional” is defined for purposes of Act 317 as a physician, psychologist, social worker, or other health care professional who is licensed or certified in the state of Wisconsin and is acting within the scope of his or her license of certification.7

    A tenant can only abate their rent if the untenantability is due to a condition that materially affects the health or safety of the tenant, or substantially affects the use and occupancy of the premises.

    Wisconsin lawyers should be aware that under federal fair housing law, a tenant who wishes to keep an ESA is not required to have a licensed health care professional verify that the tenant has a disability and a disability-related need for the ESA. Federal law only requires a reliable third party who has information about the tenant’s disability and disability-related need. So, unless a lawyer is prepared to argue that Wisconsin’s new law preempts federal law, there is a possibility that those landlordswho abide by Wisconsin’s new ESA law may be in violation of federal law.

    A landlord can deny a tenant the ability to keep an ESA if any of the following are true:

    • The tenant is not disabled, does not have a disability-related need for the ESA, or fails to provide the necessary documentation.

    • Allowing the ESA would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the landlord.

    • The specific ESA poses a direct threat to a person’s health or safety that cannot be reduced or eliminated by another reasonable accommodation.

    • The specific ESA would cause substantial physical damage to a person’s property that cannot be reduced or eliminated by another reasonable accommodation.8

    The tenant, the tenant’s health care professional, or both can be fined not less than $500 if either or both, for the purpose of obtaining housing, intentionally misrepresent that the tenant has a disability or a disability-related need for the ESA.9 Act 317 does not state which person or entity may pursue such a fine. The presence of ESAs in housing and alleged abuses of the law continue to be a hotly contested issue, and it is the authors’ view that such a provision was included in Act 317 primarily to help ensure the legitimacy of tenants’ requests for ESAs in housing.

    Charging for a Landlord’s Time to Repair

    Current law states that if a tenant causes damage to the rental unit, the landlord can elect to repair the tenant-caused damage, but that the tenant must reimburse the landlord for the reasonable cost of repairs.10 Act 317 defines “reasonable costs” to include materials and a landlord’s labor, at a reasonable rate, for the time that a landlord spends doing the following: 1) purchasing or providing materials; 2) supervising an agent of the landlord; or 3) hiring a third-party contractor.11

    Abatement of Rent

    Act 317 amended Wis. Stat. section 704.07 regarding untenantability and the abatement of rent. Current law states that if the rental property is untenantable and the tenant remains living in the rental property, the tenant may abate their rent.12 Act 317 clarifies that a tenant can only abate their rent if the untenantability is due to a condition that materially affects the health or safety of the tenant, or substantially affects the use and occupancy of the premises.13

    Tristan R. Pettitcom tpettit petriepettit Tristan R. Pettit, Marquette 1995, is a shareholder with Petrie + Pettit S.C., Milwaukee, focusing on landlord-tenant law and representing landlords and property management companies statewide. He handles evictions and a variety of litigation, including lead-based paint, Fair Housing, building code orders, and nuisance lawsuits. He has created forms and presented seminars related to landlord-tenant law.

    Jennifer M. Haydencom jhayden petriepettit Jennifer M. Hayden, Marquette 2005, is also with Petrie + Pettit S.C. and focuses her practice in landlord-tenant law as well as representing equine-related businesses. She handles all aspects of commercial and residential tenancies, including drafting and interpretation of commercial leases and residential agreements and other rental documents, litigation involving commercial leases or residential agreements, and eviction actions.

    Note that the Wisconsin Statutes do not define “untenantability,” and the authors are unaware of any Wisconsin case specifically interpreting the word. One could assume that it is synonymous with the word “uninhabitable,” but that is subject to a court’s determination.

    Credit and Background Checks

    Wisconsin Statutes section 704.085, also added by Act 317, essentially incorporates a section of Wis. Admin. Code section ATCP 134.05(4) regarding credit checks, increases by $5 the amount that a landlord can charge rental applicants to obtain their consumer credit check, and adds a new provision regarding the ability to charge certain applicants for background checks.14

    A landlord may require that a rental applicant pay the landlord’s actual cost, up to $25, to obtain a consumer credit report from a consumer credit reporting agency that compiles and maintains files on a nationwide basis. A landlord must notify the rental applicant of the charge before ordering the report and must provide the applicant with a copy of the report, if the applicant paid for the report. Additionally, a landlord cannot require an applicant to pay for a consumer credit report if, before the landlord orders the report, the applicant provides the landlord with a copy of the applicant’s credit report that is less than 30 days old.15

    Act 317 created a new provision allowing a landlord to require a rental applicant who is not a Wisconsin resident to pay the landlord’s actual costs, up to $25, to obtain a background check on the applicant.16 Neither Act 317 nor any part of the Wisconsin Statutes defines background check, but the authors assume it will likely be interpreted as referring to a criminal background check.

    For unknown reasons, this section of Act 317 first applies to rental agreements entered into or renewed as of April 18, 2018.17 This delayed effective date might cause unnecessary confusion because Wisconsin law does not require a landlord to include language about credit checks and background checks and their corresponding fees in a rental agreement (in fact credit reports and background checks are typically completed before entering into a rental agreement) and thus this delayed effective date seems to potentially provide a trap for the unwary.

    Electronic Delivery of Certain Documents and Information

    Act 317 created Wis. Stat. section 704.10, which allows a landlord to provide a tenant with certain information and documentation via electronic means.18 Although electronic means is not defined in that particular statutory section, Wis. Stat. section 610.60(1)(b)(1) defines electronic means to include delivery to an electronic mail address at which a party has consented to receive notices or documents. Specifically, a rental agreement may include provisions allowing a landlord to provide and indicate agreement to send the following via electronic means:

    1. A copy of the rental agreement and any other document related to the rental agreement (for example, rules and regulations, nonstandard rental provisions, and other rental documents);

    2. A security deposit and any documents related to the accounting and disposition of the security deposit and security deposit refund;

    3. Any promise made by the landlord, before entering into the rental agreement, to clean, repair, or otherwise improve any portion of the rental unit; and

    4. A notice to enter the rental premises (for example, 12-hour notice to enter).19

    This section first applies to rental agreements entered into or renewed as of the effective date of Act 317, April 19, 2018, because to be enforceable, the above language must be included in the rental agreement or a renewal.20

    New State Bar Resources Address Recent Changes to Wisconsin Landlord-Tenant Law

    Under revised Wis. Stat. section 799.206(3), an eviction hearing is scheduled before a judge only if the tenant “raises valid legal ground for a contest.” A tenant may raise the following defenses:

    1. There is no landlord-tenant relationship between the parties.

    2. The tenant has a right to hold over.

    3. The landlord has not given proper notice.

    4. The landlord lacks proper title to the premises.

    5. The landlord is attempting retaliatory eviction.1

    A tenant may also claim improper service of process or some other technical defect in the pleadings.

    In preparing a witness for an eviction hearing, the lawyer should emphasize the need to get key elements into the record. The lawyer should not tell the witness what to say verbatim, but should make sure the witness understands which points must be covered. A witness who understands what is needed to be successful can convey these points effectively. If the judge or opposing counsel objects to the questions being asked, rephrasing the questions should allow witnesses to make the same points without disruption.

    For more information on this topic and others, look for the Wisconsin Landlord & Tenant Manual (State Bar of Wisconsin 2018), coming this fall. Or check out our CLE webcast Cleaning House: Changes to Landlord-Tenant Law Under WI Act 317.

    Endnotes

    1Scalzo v. Anderson, 87 Wis. 2d 834, 849, 275 N.W.2d 894 (1979); see also Wis. Admin. Code § ATCP 134.09(5).

    Rent Includes Late Fees

    Act 317 created Wis. Stat. section 704.17(1g), which falls under the section devoted to notices terminating tenancy for failure to pay rent and other breaches and defines rent to include “any rent that is past due and any late fees owed for past due rent.”21 Before this change, at least one county had dismissed eviction actions based on a notice for failure to pay rent that included a late fee along with the past-due rent. This section also does not become effective until a landlord and tenant have entered into a rental agreement or renewal after April 18, 2018, and as with the changes related to credit and background checks, will likely only serve to confuse and trip up many lawyers.22

    Incorrect Amount in Notice

    New Wis. Stat. § 704.17(4m), created by Act 317, states that a notice for failure to pay rent or any other amount due under that rental agreement that includes an incorrect statement of the amount due will still be valid unless 1) the landlord’s statement of the amount due is intentionally incorrect, or 2) the tenant paid or tendered payment of the amount that the tenant believes to be due.23

    For example, if a landlord makes a clerical error when drafting the notice and transposes the numbers in the past-due-rent amount, this can no longer be used as a basis to dismiss the eviction.

    Again, this section also first applies to rental agreements entered into or renewed as of April 18, 2018.24

    Limits to Removal of Case Information from Consolidated Court Automation Programs (CCAP)

    Wis. Stat. section 758.20, also created by Act 317, limits the ability of the director of state courts to remove case management information from CCAP for certain types of landlord-tenant-related cases. The provision states that the director of state courts may not remove any case management information from CCAP for any civil case that is not closed, confidential, or sealed for the following time periods:

    • Ten years: if a writ of restitution has been granted in an eviction case; and

    • Two years: if an eviction action has been dismissed and no money judgment has been docketed.25

    Information available on CCAP is otherwise determined by SCR 72.01 and by the director of state courts, acting on recommendations by the WCCA Oversight Committee. Because Wisconsin landlords extensively use CCAP while screening potential tenants, this change ensures that eviction information will be accessible via CCAP for the time periods stated.

    Notarization of Summons and Complaint

    Act 317 created Wis. Stat. section 799.06(3)(b), which says that a court may not require a person filing a summons or complaint under Wis. Stat. chapter 799 (small claims actions, which includes all eviction actions) to have the summons and complaint notarized.26

    Obtaining a Contested Eviction Hearing

    Before passage of Act 317, if any party “claim[ed] that a contest exists” in an eviction action, the matter had to be scheduled for a hearing before a judge because court commissioners are unable to determine contested evictions.27 This was a very low threshold and allowed a tenant to ask for and receive a contested eviction hearing without stating a defense or providing the landlord with notice of the issues that the tenant would raise at the eviction hearing.

    Some court commissioners would attempt to flesh out a tenant’s reason for requesting the eviction hearing, but others would automatically schedule the contested hearing before the judge once the tenant said that they wanted a hearing. This often resulted in unnecessary eviction hearings being scheduled when there was no defense to the eviction, thus congesting court calendars and increasing costs to landlords.

    If a landlord accepts late rent from a tenant for a month or two, that does not mean that the landlord has modified the due date for payment of rent nor that the landlord is precluded from serving a notice or filing an eviction against a tenant for payment of late rent in the future.

    Act 317 amended Wis. Stat. section 799.206(3) and raised the threshold needed to obtain an eviction hearing such that an eviction action will now be scheduled for a hearing before a judge if the tenant “raises valid legal ground for a contest.”28 This modification ensures that landlords have notice of the issues the tenant will raise at trial because written answers are not required in small claims court and avoids the type of unnecessary contested eviction hearings that had occurred in situations previously when tenants had no legal defense.29

    Service of Notices via Certified Mail

    Wisconsin Statutes section 799.40(1g), also created by Act 317, states that if a landlord serves a tenant with a notice terminating tenancy via certified mail, proof of the certified mailing from the U.S. Post Office is sufficient to establish that proper service has been provided.30 The law specifically prohibits a court from requiring that an affidavit of service also be filed to establish that proper service was accomplished.

    Previous Waiver of Violation Not a Defense

    A new provision created by Act 317, Wis. Stat. § 799.40(a) (“No waiver by landlord or tenant”), states it is not a defense to an eviction action or a claim for damages that the landlord or tenant has previously waived any violation or breach of any terms of the rental agreement including, but not limited to, the acceptance of rent, or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lessen the right of the landlord or tenant to insist on strict performance of the terms of the rental agreement.31

    So, if a landlord accepts late rent from a tenant for a month or two, that does not mean that the landlord has modified the due date for payment of rent nor that the landlord is precluded from serving a notice or filing an eviction against a tenant for payment of late rent in the future.

    Emergency Assistance Stays

    The emergency assistance statute, Wis. Stat. section 799.40(a) was also amended by Act 317. Emergency assistance can be applied for and received once every 12 months and is available to any tenant who is facing impending homelessness and has a child under the age of 18.32 Emergency assistance funds are paid directly to the landlord if the landlord is willing to dismiss the eviction action and allow the tenant to remain living in the rental property. If the landlord is not willing to accept the emergency assistance, then a tenant may apply the funds toward their security deposit or the first month’s rent with a new landlord.

    Prior law required a court to stay an eviction if a tenant applied for emergency assistance. In McQuestion v. Crawford, the Wisconsin Court of Appeals held that implicit in the statute is the requirement that any emergency stay be in effect for only a “reasonable period of time.”33 Needless to say, in practice there were a variety of interpretations of the meaning of a “reasonable period of time.”

    Act 317’s revisions to the emergency assistance statute restrict the emergency assistance stay to a period of not more than 10 working days. Additionally, no emergency stay may be granted if the court has already issued a writ of restitution.34

    Representations to Court as to Preparation of Pleadings or Other Documents

    Act 317 amended Wis. Stat. section 802.05(2m) regarding lawyers who draft or assist in drafting a pleading, motion, or other document field for self-represented individuals. The law now requires that not only must the document contain a statement immediately adjacent to the person’s signature that “This document was prepared by with the assistance of a lawyer” but also that this statement must be followed by the name of the lawyer and the lawyer’s State Bar number.35

    Conclusion

    Changes to landlord-tenant law are always heavily debated and certainly, as with all statutes, subject to interpretation by lawyers and judges alike. While frequently considered to be “landlord friendly,” Act 317 creates substantial changes and a few traps for the unwary, and therefore it is imperative that lawyers for both landlords and tenants become familiar with the changes.

    Meet Our Contributors

    What is the most important trait a lawyer has?

    Tristan R. PettitIn my opinion, reputation is the most important trait a lawyer has. If you don’t know a subject matter, you can learn it. If you lose a big client, another opportunity may come around the corner eventually. Everything else can be learned, replaced, or handled with extra work and dedication … except for your reputation.

    Once your reputation is blemished it is hard to repair. I can’t speak for others, but I know that when I am on the receiving end of less than civil behavior from another lawyer, I do not forget it. I file it away and that lawyer’s reputation has taken a hit in my book. That lawyer will never get the benefit of the doubt from me again.

    One’s reputation is affected not only by how you treat other lawyers, but also by how you treat the court, your staff, and your clients. The law is adversarial by nature and nothing is wrong with a good battle, but when the motion, trial, or case is over, you should be able to say that you treated everyone with respect.

    I am as competitive as the next person (at times maybe more so), but before I choose a course of action, I try and step back and think about how what I am planning on saying or doing, will play out. Will it affect my reputation?

    com tpettit petriepettit Tristan R. Pettit, Petrie + Pettit S.C., Milwaukee.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 2017 Wis. Act 317; Wis. Stat. § 991.11.

    2 2017 Wis. Act 317, § 31.

    3 Id. §§ 28, 30.

    4 Id. § 30.

    5 Id.

    6 Id.

    7 Id. § 29.

    8 Id. § 30.

    9 Id.

    10 Wis. Stat. § 704.07(3)(a).

    11 2017 Wis. Act 317, §§ 37-38.

    12 Wis. Stat. § 704.07(4).

    13 2017 Wis. Act 317, § 39.

    14 Id. § 41.

    15 Id.

    16 Id.

    17 Id. § 56.

    18 Id. § 42.

    19 Id.

    20 Id.

    21 Id. § 44.

    22 Id. § 56.

    23 Id. § 45.

    24 Id. § 56.

    25 Id. § 46.

    26 Id. § 48.

    27 Wis. Stat. § 799.206(3).

    28 2017 Wis. Act 317, § 49.

    29 Wis. Stat. § 799.20.

    30 2017 Wis. Act 317, § 50.

    31 Id. § 51.

    32 Wis. Stat. § 489.138.

    33 McQuestion v. Crawford, 2009 WI App 35, 316 Wis. 2d 494, 765 N.W.2d 822.

    34 2017 Wis. Act 317, § 52.

    35 Id. § 53.